What should I know about evictions?

Contents

• What is eviction?
• What are my rights?
• What are my responsibilities?
• What are my landlord’s rights?
• What are my landlord’s responsibilities?
• How do I protect my rights?

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What is eviction?

Eviction is the removal of a tenant from rental property by the landlord. The eviction lawsuit is also called a dispossessory proceeding. The dispossessory affidavit, or warrant, is the legal name for the eviction warrant the landlord files with the court. This warrant requests that the court return the property to the landlord and award money for any unpaid rent owed to the landlord. The landlord can also request the tenant to pay the landlord for the cost of filing and serving the eviction notice.

The warrant states:

• The date the notice is served
• The name of the landlord
• The name and address of the tenant
• The reason for the notice
• Verification that the landlord demanded possession of the property and was refused
• The total amount of rent and other charges due

Who can issue the eviction warrant?

A judge of other court with jurisdiction over the subject matter or the judge, clerk, or deputy clerk of the magistrate court.

 

Who can serve the eviction notice?

The sheriff or any official will serve the tenant with the notice.

How is the eviction warrant served?

• The sheriff must try to personally deliver the eviction warrant to you or any other resident in your home.

OR

• If after reasonable effort, the sheriff cannot find you or anyone living in your home, the sheriff will post a copy of the eviction notice on your door. The sheriff will also mail a copy of the eviction notice to you at your last known address. This is called a tack and mail service.

What is the importance of tack and mail service?

If the eviction notice is served by tack and mail service, the court cannot issue a money judgment. But, if you are served by tack and mail and you file an answer, the court can award a money judgment.

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What are my rights?

You have the right to only be evicted if your landlord files a proper court action. If your landlord does not get an eviction warrant, they cannot evict you, even if you have not paid your rent. When a landlord attempts to kick you out without going through this process and obtaining the necessary court order, that is against the law.

 

If your landlord does not go through the court process, they cannot:

• change the locks,
• force you to move, or
• shut off utilities.

 

If your landlord tries to evict you without a court order, you have the right to ask them to leave. The rental unit is your home and you have the right to decide who comes on the property. 

 

If the landlord does get a warrant to evict you, you can file an answer to your landlord’s eviction warrant. This is your chance to state why your landlord does not have the legal right to evict you. You can write your answer or you can tell your response to the court clerk who will write it for you. You must answer within 7 days from the date of actual service, unless the seventh day is a Saturday, Sunday, or a legal holiday. If the seventh day is any of those days, you will answer on the next day. The last possible date to answer will be stated on the summons. The landlord does not need to appear on the date of your response.

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What are my responsibilities? 

What can I do to avoid being evicted?

• Pay rent
• Do not violate the lease or any rules that are part of the lease
• Leave the premises at the end of the lease term
• If you are going to be away for a week or more, put in writing to the landlord that you’re not abandoning the unit

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What are my landlord's rights?

If your landlord wants you to move out of the rental property, but you are not willing to move, the landlord must go to court. At court, the landlord will get an order to remove you. It is illegal for the landlord to evict you by changing the locks or threatening you. Georgia law requires the landlord to demand in writing that you immediately give up possession and vacate. If you refuse, the landlord must go to the magistrates court and file a dispossessory affidavit, also known as an eviction warrant.

 

What can a landlord do when it looks like the tenant has abandoned the property?

If it appears like the tenant has moved without giving notice, it is best for a landlord not to consider the property abandoned if rent paid on time. The landlord must be cautious in treating the home as abandoned and taking possession.

 

But, if the rent is past due, the landlord should file a formal eviction notice. The landlord should also get a court order for possession of the property. This order will protect the landlord from liability.

If you are the landlord and you want to treat the home as abandoned, follow these steps. First, send a letter to the tenant's last known address. Ask the tenant to remove all possessions by a certain date or the landlord will have the items removed. If you are removing the tenant's property, take pictures of the property before you get rid of it. The pictures will be helpful if the tenant claims you threw out items that were valuable. If you mistakenly assume that the tenant has abandoned the property and you took possession, you may liable for any items the tenant lost.

When can a landlord begin legal proceedings to evict a tenant?

 

The basis for evicting a tenant are:

• Non-payment of rent
• Failure to surrender the premises at the end of the lease term
• Violation of the lease and lease rules

 

Can a landlord retaliate against a tenant for certain actions?

No. A landlord cannot retaliate against a tenant who:

• Enforces or tries to enforce a right under the lease, municipal ordinance, or federal or state statute
• Gives a landlord a notice to repair 
• Files complaint with a government agency
• Organizes, tries to organize, or participates in a tenant organization

If you take any of the actions listed above, for a three-month period, a landlord cannot:

• File a dispossessory (unless you don’t pay rent or unless you stay after your lease has ended)
• Interfere with your use of the property 
• Reduce your services
• Increase your rent or end your lease early (but rent can be raised based on income change in subsidized housing)
• Interfere with your rights under your lease

If your landlord does any of these things, you can use them as a defense if your landlord files court papers to evict you. If you win in court, the judge might give you, as damages: 

• 1 month rent + $500
• Actual damages
• Court costs
• Attorney’s fees (Only in serious cases were the landlord’s bad actions were intentional) 

Under some circumstances, the judge might not give you those damages:

• The judge will deduct any past due rent from your award
• The judge could decide the landlord took actions for some other reason that wasn’t retaliation. One example is if you were behind on your rent.
• If your rental home had passed a government or licensed inspection in the past year. that within the prior 12 months the property passed inspection by a federal, state, or local program, a code enforcement officer, or a licensed building inspector.

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What are my landlord's responsibilities?

If the landlord wants to force tenants to move, the landlord must go to court and follow the dispossessory process. It is illegal for a landlord to intentionally cancel heat, light and water service to a tenant. This can only occur after the ruling of the eviction hearing with a judge. A landlord who suspends utilities may be subject to a fine of up to $500. Some courts will award the tenant the $500. Other courts will order payment of the fine into the court registry.

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How do I protect my rights as a tenant?

• If a landlord is trying to force you to move, you can take legal action against the landlord for damages due to a wrongful eviction. It is best that you ask a lawyer for help. If you cannot get a lawyer, you can file a claim in the magistrate court of the county where the landlord is.
• If a landlord mistakenly assumed that you abandoned the home and removed your items, you can sue the landlord to recover any items.

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Contents

• What can I do if my landlord tries to evict me without a court order?
• What should I know about filing an answer to an eviction warrant?
• What should I know about the court?
• Can I appeal the court’s decision?
• What happens if I rent a land lot for my mobile home and I fail to pay my rent?

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What can I do if my landlord tries to evict me without a court order?

If your landlord comes to your home and demands that you leave without going through the eviction process you should: 

• stay calm and
• ask the landlord to leave the property.

The rental unit is your home and you have the right to decide who comes on the property. 

 

If the landlord refuses to leave, you can call your local non-emergency police line and report them as a trespasser.

• When the police arrive, explain that you are a tenant and that your landlord is trying to evict you without a court order.
• Show the police officer your lease, rent receipts, or any other documents that support your position.
• Ask the police officer to instruct the landlord to leave.

 

The police officer should instruct the landlord that they must leave the property or face charges for criminal trespass. If the police officer sides with the landlord and forces you to leave, get the police officer's name and badge number and report that officer to the local police department's internal affairs division.

 

If your landlord is trying or has successfully evicted you without a court order, you should:

• carefully document all lost belongings and costs, and
• contact an attorney right away, as you may have a claim against the landlord for compensation.

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What should I know about filing an answer to an eviction warrant?

What kind of information should my answer include?

• The answer may contain any legal defense or counterclaim
• Claims for money that the landlord owes you for the costs of repairs that you made to the home when the landlord failed to make them
• Claims for damages to your personal property or health that have resulted from the landlord's failure to make repairs
• Reasons why the lease was not violated if the landlord is seeking to evict you for violating the lease
• Request for any money the landlord owes you

What happens if I do not file my answer?

If you do not answer, you waive the right to challenge the landlord's claims against you. This means a default judgment will be entered against you. A default judgment cannot be appealed.

 

If there is a very good, very sympathetic reason why you did not file an answer, it is possible to file a motion asking the court to:

• Stop the execution of the writ of possession (the court order issued after the landlord wins the eviction case)
• Set aside the default judgment
• Allow the tenant to file an answer
• Allow the tenant to have a hearing

Consult an attorney to do this, if possible.

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What should I know about the court?

What happens after I file my answer?

The court will schedule a hearing to give both the tenant and landlord the chance to present their side of the case. If you knowingly make a false statement in an answer, you could be found guilty of a crime called perjury. 

Can the court’s decision be appealed in an eviction case?

Yes, but any appeals must be filed within seven days of the judgment. Once appealed, the case will be placed on the court's next calendar for a non-jury hearing. If you or the landlord want a jury trial, you must request the jury trial within thirty days from filing the appeal.

What is a tender defense?

If your landlord filed for an eviction because you did not pay rent, you may be able to avoid eviction by paying everything that the landlord says you owe. You may also have to pay any extra court costs. This amount total should be stated on the eviction summons. You must offer payment within seven days of receiving the summons.

 

The landlord is required to accept such payment from the tenant only once in a twelve-month period. This is called the tender defense.

If a landlord refuses to accept the tender, you should file an answer to the eviction notice stating that tender was offered, but refused.

 

If a court finds that a landlord refused your tender, the court can order the landlord to accept all payments and fees. The court can also require that the landlord allow you to stay, if the payment is made within three days of the court's order. If this happens, your payment will not count as use of the tender defense.

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Can I appeal the court’s decision?

Does the tenant have to pay rent into court if the tenant appeals?

To file an appeal, the court costs must either be paid or the court orders that you do not have to pay the costs. If you cannot afford to pay the court costs to file an appeal, you can ask the court to waive payment by filing a pauper's affidavit. Once the appeal is filed, you will put the court's judgement on hold.

Under Georgia law, if you want to continue to live in the unit while the appeal is pending, you must pay into court the amount of rent found due by the trial court. If you cannot afford to pay the rent the court found due, you can still file an appeal but you will have to leave the rental unit.

Does the tenant have to pay the lower court’s judgment if the tenant appeals?

Yes. If the judgment of the lower court is against you and you appeal, the court usually orders you to pay into court the amount of rent found due by the lower court. If you do not pay, the court will issue an order to have you removed from the property.

Is the tenant required to pay all future rent while the appeal is pending?

The court may also order you to pay into court the future rent as it comes due while the appeal is pending. If you fail to pay, the court will order to remove you from the property.

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What happens if I rent a land lot for my mobile home and I fail to pay my rent?

Under Georgia law, if you have not paid your rent and your landlord obtains a writ of possession for property, you have 10 days to move the mobile home. If you do not, the landlord can have the mobile home moved at your expense. Whoever moves the mobile home can place a lien on the mobile home for the moving fees and storage charges. Georgia law limits the amount of storage fees that can be charged to $4.00 per day. The holder of the lien can foreclose on the mobile home to recover the cost of moving and storing the mobile home

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